If you have issues viewing or accessing this file, please contact us at NCJRS.gov. SCHOOL CRINE ItJ' "There can be no justice until those of us. who are unaffected by crime become as indignant as those who are." Solon 635-558 B,C. -;JAMES-N.--RAPP - NATIONAL SCHOOL SAFETY CENTER 1/-,,,/3 ~,~ SCHOOL CRIME & VIOLENCE VICTIMS RIGHTS Revised 1992 JAMES A. RAPP FRANK CARRINGTON GEORGE NICHOLSON NATIONAL SCHOOL SAFETY CENTER ii School Crime and Violence: Victims' Rights School Crime and Violence: Victims' Rights SecondEdition By James A. Rapp, Frank Carrington and George Nicholson Copyright © 1986, 1992 by Pepperdine University Press Printed in the United State s of America -- First Printing (1986) Third Printing ( 1992 ) Library of Congress Cataloging-in-Publication Data Rapp, James A. School Crime and Violence: Victims' Rights Includes bibliographical references and index. 1. Tort liability of school districts -- United States. 2. School violence -- United States. 3. School discipline -- United States. 4. Vcitims of crimes --Legal status, laws, etc. -- United States. I. Carrington, Frank. II. Nicholson, George, 1941- .III. Title. IV. Title: School Crime and Violence. KF4159.R361986 344.73'075 86-8650 ISBN 0-932612-25-3 347.30'475 National School Safety Center Pepperdine University's National School Safety Center is a partnership of the U.S. Department of Justice and U.S. Department of Education. NSSC's goal is to bring a national focus to school safety. This includes preventing campus crime and violence, improving discipline, increasing attendance and preventing drug traffic and abuse. NSSC communication and technical assistance activities help coalesce public, private and academic resources to ensure all our schools are safe, secure and peaceful places of learning. Executive Staff Ronald D. Stephens, Executive Director G. Ellis Butterfield, Deputy Director Bernard James, Special Counsel James E. Campbell, Business Manager National School Safety Center Pepperdine University Malibu, California 90263 Prepared under Grant No. 85 -MU-CX-0003 from the Office of Juvenile Justice and Delinquency Prevention, Office o f Justice Programs, U.S. Department of Justice. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice, U.S. Department of Education or Pepperdine University's National School Safety Center. CoverDesign: Stuart Greenbaum =°° III Foreword When Massachusetts created America's first state board of education in 1837, that board selected a lawyer, Horace Mann, to serve as this nation' s first state superintendent of schools, a post he held with distinction for 12 years. Many outstanding lawyers and judges, although usually in their lay capacities, have since been actively involved with public schools. Formal legal intervention in school matters was a rarity until the 1950s and 1960s. Since then, lawyers and judges have become ever more actively involved with schools, frequently in a professional role, often adversarial in nature. This change is noted in many land- mark United States Supreme Court decisions, among them Brown v. Board of Education and Tinker v. Des Moines Independent Commu- nity School District. This trend is especially evident now that our country has entered an era of expanding liability and exploding litigation. The law has become the vehicle for attempting to settle countless conflicts which might formerly have been resolved by other means in the local community. It is clear America's schools, and the people associated with them, are not immune from burgeoning liability and litigation. Cases involv- ing virtually every aspect of education have been, or are currently, in court at some level. Without debating the merits of injecting courtrooms into class- rooms, it is safe to say many educators are not familiar with the magnitude, import or specifics of the amorphous, and often ad hoc, phenomenon. Parents and students are similarly handicapped. This lack of information and understanding can only breed more conflict and litigation. It is futile to criticize the courts or lawyers for the tendencies of a litigious socity. It also serves no purpose to criticize educators, parents and students for their unfamiliarity with the legal process. Schools, and people within them, must deal with the legal here and now. The key questions here is: How can the legal community help iv School Crime and Violence: Victims' Rights them to do that? This volume, School Crime and Violence: Victim's Rights, will be of help to trial lawyers who represent victims of campus crimes. It will also be of help to school lawyers in their efforts to prevent such cases from arising in the first place; this book can serve as a useful tool for advice to educators and school administrators in risk and liability prevention and implementation of campus crime prevention programs. In addition, School Crime and Violence: Victim's Rights will serve as an incentive for the implementation and expansion of multifaceted preventive law programs in all our nation's schools. The necessity for such expansive anticipatory action can be taken from a popular television advertisement, "You can pay me now or you can pay me later." That is, we can pay to anticipate and prevent campus crime and violence, or in the absence of foresight and action, we can pay for the damage, destruction and, indeed, the human suffering which will inevitably follow. This book will demonstrate to any lay or professional reader that the fiscal and human costs of failure are too high. Justice Stanley Mosk Justice Melvyn Tanenbaum Supreme Court Supreme Court State of California State of New York V Introduction Crime victims have long been forgotten parties in the administration of justice. In the mid-1970s that all began to change. It was then the "Victims' Movement" began in earnest. Countless victim-oriented reforms have since swept through court- houses and statehouses until, in 1981, they reached all the way into the White House when President Ronald Reagan proclaimed America's first Victims' Rights Week. Ironically, he had become the nation's most visible crime victim, having just suffered a grievous gunshot wound at the hand of an attempted assassin. While innocent citizens, even presidents, may be victimized by crime anywhere, there are some places where people do deserve special status. Schools are just such special places and their students and staff require special attention and special protection. In 1982, California voters adopted Proposition 8, the Victims' Bill of Rights. It included an amendment to the California Constitution creating an inalienable right to safe public schools for all students and staff. While there is no similar constitutional mandate yet included in the law of any other state, this unique right holds the promise and potential of ushering in a new era of responsible school manage- ment --one which recognizes and responds to the needs and liberties of innocent students and staff. This reform is long overdue. Although similar constitutional mandates are lacking in other states, virtually all states provide a potential remedy to innocent students and staff through civil tort suits against school officials who fail to warn of, or protect against, criminal dangers which are known or should have been known. Negligence suits for improper hiring or retention of dangerous school employees are yet another potential remedy for campus crime victims. This exciting book, School Crime and Violence: Victims' Rights, is a comprehensive guide for protecting school crime victims. The book is authored by three prominent lawyers, James A. Rapp of the Illinois Bar, the late Frank Carrington of the Virginia Bar, and George Nicholson of the California Bar, all of whom possess established, vi School Crime and Violence: Victims' Rights national credentials as crime victims' advocates. The book provides the nation's first concise, central source for quickly accessing and utilizing new legal authorities pertinent to the inalienable right to safe schools and tort principles relating to the rights of campus crime victims. Thus, trial lawyers may use this book to enhance potential success in litigation. The book also provides the means to implement an even more elemental right -- that of being free from the risk of criminal victim- ization altogether. Thus, school officials may use the book to identify risks and responsibilities and respond in a variety of ways to mini- mize, if not totally eliminate, the potential for litigation. Clearly, students and staff who suffer as a result of culpable mis- conduct of school officials should have a remedy. At the same time, everyone should work with school officials to help them anticipate, deter and prevent campus crime. This book serves both purposes well. The book serves one additional purpose. It can be used as a supple- mental text in courses such as education law, torts, family law, workers' compensation, juvenile justice and constitutional law, among others. School Crime and Violence: Victims' Rights will thus help future professionals, as well as in-service professionals, to recognize and assimilate a change in the law which, heretofore, has largely gone unheralded. Former United States Chief Justice Warren Burger described that change: "The serious challenge of restoring a safe school environment has begun to reshape the law." This book is an excellent chronicle of the legal authorities that largely underpin the Chief Justice's cogent observation. Ronald F. Phillips School of Law Pepperdine University vii Acknowledgments The National School Safety Center and Pepperdine University ~atefully acknowledge the significant contributions of authors James A. Rapp, Frank Carrington and George Nicholson. Their qualifications and experience are summarized below: JAMES A. RAPP James A. Rapp is a member of the Quincy, Illinois, law firm of Hutmacher, Rapp & Ortbal, P.C. He is admitted to practice law in the states of Illinois and Missouri, and before the United States Supreme Court and the Seventh, Eighth, and Federal U.S.